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PPACA: Did George Washington Make Them Buy Broccoli?

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The blogosphere is atweet with posts about a legal scholar who says the first president of the United States, George Washington, signed a health insurance mandate bill. 

The author of the article is Einer Elhauge.

Elhauge published the article in January in the New England Journal of Medicine.

Elhauge wrote the article in response to opponents of the Patient Protection and Affordable Care Act of 2010 (PPACA) who contend that Congress has no authority under the Commerce Clause of the U.S. Constitution to make people engage in economic activity.

Congress has no more right to make people buy commercial health insurance than it does to make them buy broccoli, PPACA opponents contend.

Elhauge says the founders of the republic showed Congress has the authority to mandate economic activity by approving several measures requiring purchases before 1800.

In 1791, for example, Washington signed a bill authorizing U.S. consuls and vice consuls to spend up to 12 cents per man per day for aid for seamen, to keep seamen employed in vessels belonging to the citizens of the United States from suffering in foreign ports in cases of shipwreck, sickness or captivity.

The measure apparently required U.S. captains to help U.S. consuls and vice consuls by taking stranded seamen aboard their own vessels.

In 1798, Elhauge says, Congress required seamen to pay the U.S. government for hospitalization benefits. In  1792, he reports, Congress required that all able-bodied citizens obtain firearms.

“This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers,” Elhauge concludes.

Critics of Elhauge’s essay contend that the seamen health insurance mandates were narrow measures intended to help the country maintain the weapons of its militia and the strength of its merchant marine, not social welfare programs stemming from the Commerce Clause, and that seamen could have easily escaped the reach of the 1798 health insurance mandate by changing careers.

Elhaugh is the founding director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School. He was the chairman of the antitrust advisory committee for  the Obama Campaign. 


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